M/s. Oakland Bottlers (P) Ltd., New Delhi V. ACIT, New Delhi

ITA 5565/DEL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3397 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 14-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PIYUSH KR
• Assessee Lawyers: BEDOBANI
• Keywords: Revised return
• Section: 234B; 80IB; 139(5); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO.5565/DEL/2014 ASSESSMENT YEAR 2009-10 OAKLAND BOTTLERS (P) LTD. 10/46A, WEST PUNJABI BAGH, NEW DELHI. PAN: AAACO 4250B VS. ACIT, CIRCLE-13(1), NEW DELHI. (APPELLANT) (RESPONDENT) REVENUE BY : S/SHRI GAUTAM JAIN AND PIYUSH KR. ADVOCATE, ASSESSEE(S) BY : MS. BEDOBANI, SR.D.R. / DATE OF HEARING : 19/04/2017 / DATE OF PRONOUNCEMENT: 21/04/2017 ORDER THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER O F LEARNED CIT(A)- XVI, DELHI VIDE ORDER DATED 31.07.2014 FOR THE ASSE SSMENT YEAR 2009-10. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN SUSTAINING THE DISALLOWANCE OF C LAIM OF DEDUCTION OF RS.5 , 80 , 225 / - U / S 80IB OF THE ACT . 1.1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) WHILE UPHOLDING THE DEDUCTION HAS MISINTERPRETED CLAUSE (2) OF PART C O F SCHEDULE XIII READ WITH FIFTH PROVISO TO 80IB(4) OF THE ACT TO CONCLUDE THAT SINC E THE UNDERTAKING OF THE APPELLANT IS ENGAGED IN BLENDING AND BOTTLING OF IM FL WHICH RESULTS IN MANUFACTURE OR PRODUCTION OF DISTILLED/BREWED ALCOH OLIC DRINKS , THEREFORE, THE UNDERTAKING OF APPELLANT IS CLEARLY NOT ELIGIBLE FO R DEDUCTION U/S. 80IB OF THE ACT . THE FINDING OVERLOOKS THE DOCUMENTARY EVIDENCE TEND ERED BY THE APPELLANT TO ESTABLISH THAT APPELLANT IS ELIGIBLE FOR DEDUCTION U/S 80IB OF THE ACT . 1.2 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS FURTHER ERRED IN SUSTAINING THE DISALLOWANCE ON THE GROUND THAT THE RETURN WAS FILED BEYOND THE DUE DATE BY THE APPELLANT COMPANY. ITA NO.5565/DEL/2014 2 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE LEVY OF INTER EST UNDER SECTIONS 234A AND U/S 234B OF THE ACT . IT IS, THEREFORE , PRAYED THAT , DISALLOWANCE SUSTAINED U/S 80IB OF THE ACT ALONGWITH INTEREST LEVIED MAY KINDLY BE DELETED AND APPEAL OF THE APPELLANT COMPANY BE ALLOWED. 3. THE BRIEF FACTS OF THE CASE ARE AS PER THE ORDER OF THE AO VIDE PARAGRAPHS 3 TO 3.4, PAGES 1 TO 4, REPRODUCED HEREI NBELOW: 3. DURING THE YEAR THE ASSESSEE HAS SHOWN GROSS T OTAL INCOME OF RS.19,34,080/- AND AFTER CLAIMING DEDUCTION UNDER CHAPTER VIA OF R S.5,80,225/- NET INCOME OF RS.13,53,860/- HAS BEEN SHOWN AS TAXABLE INCOME. TH E ASSESSEE HAS CLAIMED DEDUCTION U/S.80IB OF RS.5,80,225/- 3. D I S A LL OWANCE OF CLAIM U/S 8018 TH E ASSES S EE H AS FI LED I TS RETURN OF INCOME FOR 2009-10 ON 30.12.2009 WITH AC KNOWLEDGEMENT NO . 104445601301209. THE ACKNOWLEDGEMENT OF THE R ETURN SHOWS THE RETURN F I L ED UNDER THE SAID ACKNOWLEDGEMENT TO BE A REVISED RET U R N. TH E ASSESSEE WAS REQUIRED TO EXPLAIN AS TO WHY THE DE DUCTION C L AIMED U/S. 80 IB MAY NOT BE WITHDRAWN ON ACCOUNT OF FOLLOWING REA SONS. I. IN THE PRECEDING ASSESSMENT YEARS I . E. IT HAS BEEN HELD THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF BLENDING AND BOTTLING OF IMFL WHICH DOES NOT CONSTITUTE A MANUFACTURING ACTIVITY U/S 80 1B. SINCE THE ASSESSEE IS NOT ENGAGED IN THE MANUFACTURING ACTIVITY THEREFORE DED UCTION U/S. 801B IS NOT ADMISSIBLE . II. THE RETURN HAS BEEN FILED AFTER THE STATUTORY DUE DATE PRESCRIBED U/S.139(1). III. THOUGH THE ASSESSEE HAS CLAIMED THAT THE ORIG INAL RETURN FILED ON 30.09.2009 AND IT WAS SUBSEQUENTLY REVISED ON 30.12.2009. BUT THE PERUSAL OF THE ACKNOWLEDGEMENT OF THE ORIGINAL RETURN FILED BY THE ASSESSEE SHOWS THAT ALL FIGURES HAS BEEN REPORTED IN ZERO. IV. THE ITD IS SHOWING THE RETURN FILED BY THE ASS ESSEE TO BE A BELATED RETURN, ENCLOSED AS ANNEXURE OF THE ORDER. THE ITD SYSTEM HAS NOT ALLOWED DEDUCTION U/S.80IB AS THE RETURN WAS BELATED RETURN. 3.2 THE ASSESSEE IN ITS REPLY FILED ON 09.12.2011 SUBMITTED THAT THE COMPANY IS ENGAGED IN THE BUSINESS OF BLENDING AND BOTTLING OF IMFL. THE ASSESSEE CLAIMED THAT THE COMPANY IMPORTS VARIOUS SPRITS AND THE OTH ER INGREDIENTS LIKE WATER, CARAMEL AND ESSENCE ARE ADDED AS PER FORMULATION AN D AFTER FILTRATION AND INSPECTION THE BLEND IS PACKED IN DIFFERENT SIZE OF BOTTLES AND IS FIT FOR HUMAN CONSUMPTION.......... IN THE ENTIRE PROCESS OF BLEN DING AND BOTTLING THERE IS NO ITA NO.5565/DEL/2014 3 DISTILLATION/BREWING OF ANY SPRIT FROM MOLASSES OR GRAINS NOR ANY PROCESS OF DISTILLATION IS FOLLOWING. THE COMPANY WHILE FILING THE ANNUAL RETURN HAS CLAIMED DEDUCTION U/S.80IB AND IN LIGHT OF THE ABOV E FACTS IT IS ALLOWABLE TO THE ASSESSEE. 3.3 SUBMISSION OF THE ASSESSEE IS DULY CONSIDERED A ND NOT ACCEPTABLE ON ACCOUNT OF FOLLOWING REASON. A) THE ASSESS E E COMPANY IS ENGAGED IN THE BUSINESS OF BLENDING AN D BOTTLING OF INDIAN MADE FOREIGN LIQUOR IN THE STATE OF JAMMU & KASHMIR AND HAVING ITS REGISTERED OFFICE IN DELHI. THE COMP ANY IS STATED TO HAVE COMMENCED ITS BUSINESS OF BLENDING AND BOTTLING OF IMFL IN THE STATE OF J&K W . E.F. 14.02.2003. DURING THE PERIOD UNDER CONSIDERATION, THE ASSESSEE, BESIDES ITS NORMAL BUSINESS, HAD CARRIED OUT TRADING IN COMPUTER PARTS, TEXTILES AND PAPERS. THE ASSESSEE HAS CLAIME D DEDUCTION U/S 80IB TO THE T UNE OF RS.5,80,2251- BUT, THE ASSESSEE ' DOES NOT FULFILL THE CONDITION TO CL A IM THE DEDUCTION U/S 801B OF INCOME-TAX ACT, 1961. ACCORDINGLY, ASSESSEE WAS ASKED TO EXPLAIN WHY DEDUCTION CLAIMED U/S 801B OF THE ACT SHOULD NOT BE DISALLOWED AS THE ASSESSEE COMPANY IS FALLING UNDER THE PURVIEW OF SCHEDULE XIII PART C AND PROVISO TO SUB- SECTION 4 OF SECTION 801B WHICH CLEARLY STIPULATES THAT NO DEDUCTION UND ER THIS SUB-SECTION SHALL BE ALLOWED TO AN INDUSTRIAL UNDERTAKING IN THE STAT E OF JAMMU & KASHMIR . WHICH IS ENGAGED IN THE MANUFACTURE & PRODUCTION OF ANY ARTICLE OR THING SPECIFIED IN PART-C OF THE THIRTEENTH SCHEDULE. IN RESPONSE, THE ASSESSEE HAS FILED A DECISION OF THE HIGH COURT . OF CHENNAI CLARIFYING THAT BLENDING AND BOTTLING OF IMFL AMOUNT TO 'M A NUFACTURE' FOR THE PURPOSES OF CLAIMING DEDUCTION UNDER SECTION 801B OF INCOME-TAX ACT , 1961. BUT, THE ASSESSEE HAS FAILED TO APPRECIATE THAT THE CASE REFERRED TO IN T HE DECISION OF HIGH COURT OF CHENNAI , RELATES TO AN ASSESSEE WHO HAD CARRIED OUT ITS BUSINESS OF BLE NDING AND BOTTLING OF IMFL IN PONDICHERRY AND NOT IN THE STATE OF JAMMU AND KASHMIR . THEREFORE, THE CASE REFERRED TO BY THE ASSESSEE IS EAS ILY DISTINGU I SHABLE. AS DISCUSSED ABOVE, THE BLENDING AND BOTTLI NG OF IMFL DOES NOT QUALIFY FOR DEDUCTION U/S 80LB OF INCOME-TAX AC T IN THE CASE ' OF THE ASSESSEE. ACCORDINGLY, THE DEDUCTION QLAIMED BY THE ASSESSEE U/S. 801B OF THE INCOME TAX ACT ARE BEING INITIATED SE P ARATELY FOR PROVIDING INACCURATE PARTICULARS OF ITS INCOME B Y THE ASSESSEE . B) THE ASSESSEE HAS FILED THE RETURN AFTER THE DUE DATE OF FILING OF RETURN THEREFORE IN ANY CASE THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S. 801B. C) THE ASSESSEES CLAIM THAT THE ORIGINAL FILED ON 30.09.2009 IS NOT ACCEPTABLE BECAUSE THE RETURN FILED ON 30.12.2009 B Y THE ASSESSEE IS SHOWN AS BELATED RETURN IN THE ITD SYSTEM. FURTHER, THE ACKNOWLEDGEMENT OF THE ORIGINAL RETURN IS BEING REF LECTED IN ITD. THE ITD SYSTEM HAS ALSO NOT ALLOWED THE DEDUCTION CLAIM ED U/S.80IB AS ITA NO.5565/DEL/2014 4 THE RETURN HAS NOT FILED WITHIN THE DUE DATE OF FILI NG OF RETURN. 3.4 IN VIEW OF THE FOREGOING DISCUSSION THE DEDUCT ION CLAIMED U/S.80IB AMOUNTING TO RS.5,80,225/- IS BEING DISALL OWED AND ADDED BACK TO THE INCOME OF THE ASSESSEE. 5. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE FACTS OF THE CASE. IT WAS POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSE SSEE, MR. GAUTAM JAIN, ADVOCATE THAT DURING THE ASSESSMENT YEAR 2007-08 TH E CLAIM U/S.80IB WAS ALLOWED BY THE INCOME TAX DEPARTMENT UNDER THE ASSE SSMENT MADE U/S.143(3) OF THE ACT. THE SAID DEDUCTION SO CLAIME D U/S.80IB OF THE ACT WAS DISALLOWED U/S.154 OF THE ACT FOR WHICH THE APPEAL WAS MADE BEFORE THE INCOME TAX APPELLATE TRIBUNAL WHO ALLOWED THE CLAIM OF THE ASSESSEE AND HELD THAT THE ORDER U/S.154 WAS ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTION. THE RELEVANT FINDINGS OF THE ORDER OF ITAT E BENC H IN ITAS NO.5304 AND 5305/DEL/2012 DATED 13 TH SEPTEMBER, 2017 ARE PLACED AT PAGES 86 TO 100 AND RELEVANT PAGE IS PAGE NO.96 WHERE THE FINDINGS IN P ARAGRAPH 18 IS REPRODUCED HEREINBELOW: 18. WE THUS FIND CONSIDERABLE COGENCY IN THE SUBMI SSION OF THE ASSESSEES COUNSEL THAT ASSESSMENT ORDER PASSED U/S.143(3) OF THE ACT AFTER CONSIDERING THE RELEVANT MATERIAL AND OTHERWISE ALSO THERE IS NO MI STAKE APPARENT FROM RECORD WHICH CAN BE RECTIFIED U/S.154 OF THE ACT; THEREFOR E, THE NOTICE U/S.154 AND ORDER PASSED ARE ILLEGAL, BAD IN LAW AND WITHOUT JURISDIC TION AND GROUNDS RAISED ARE ALLOWED. 6. IN THE SAME ORDER, THE ITAT DELHI E BENCH FOR THE ASSESSMENT YEAR 2008-09 FOLLOWING THE ORDER OF ASSESSMENT YEAR 2007 -08 AND ALLOWED THE CLAIM OF THE ASSESSEE FOR THE RELEVANT ASSESSMENT Y EAR 2008-09. FOLLOWING THE DECISION OF HONBLE DELHI HIGH COURT IN THE CAS E OF DELHI PATRA PRAKASH, 355 ITR 14 (DEL) AND ALSO THE DECISION OF HONBLE S UPREME COURT IN THE CASE OF SHASUN CHEMICALS AND DRUGS LTD. VS. CIT, 38 8 ITR 1 (SC) AND THE ITA NO.5565/DEL/2014 5 RELEVANT DECISION OF ITAT DELHI E BENCH IS REPROD UCED HEREINBELOW: WE HAVE ALREADY HE L D W H I LE DISPO S ING O F F ITA NO. 5304 / D /201 2 TH A T O RDE R M AD E U/S.1 43(3) OF THE AC T D ATE D 3 0 .1 2.2009 FOR AY 2 . 007-08 E N T I TLI NG T H E DED U C TI O N U/ S 80IA OF THE ACT WA S V A L I D AND COULD NOT BE SUB JE CT MATT E R OF REC TIF I C A TIO N U/ S 154 OF THE ACT . T H E CONSEQUENT EFFECT OF THE AFORESAID FINDING I S THAT CLAIM M A DE U/S. 8 0IA OF THE ACT STANDS A LLOWED IN THE : INITIAL ASSESSMENT YEA R 20 07-08 IN ASSESSMENT FRA MED U/S 1 43(3 ) OF THE ACT. THE HO N' BLE DELHI HIGH COURT IN T HE CASE O F CIT V. DEL H I PA T R A PRAKASH LTD. 355 ITR 14 ( D EL . ) HAS B E E N PLEASED T O CONSIDER T O QU ES TION A S TO WHET HE R T HE I T AT WAS RIGHT IN HO L DI NG THAT R EQUI S I T E C ONDITIONS TO BE FU L F ILL E D F OR A LLOW ABILITY OF DEDUCTION U/S. 80I OUGHT T O BE S ATISF I E D , NOT ONLY IN THE F I R ST OR THE I N I TIA L YEA R, BUT IN AL L TH E A S SESSMENT Y E AR S IN W HICH THE DEDUCTION U/S.80I I S CLA I M E D B Y TH E ASSE SSEE. T HE H ON 'B L E H IG H C OURT A T P A R A 74 TO PARA 80 H AS B E E N PLEASED TO HOLD AS U ND ER : ' 7 4. I N THE PR ES E NT CASE , THE ' CLAIM OF THE ASSESSEE UNDER SECTION 80 - 1 OF THE ACT WAS E XA MINED AND AL LOWED BY THE ASSESSING OFF I CER F OR THR EE YEARS PRECEDING THE ASSESSMENT Y E AR 1991-9 92. I T IS RELEVANT TO NOTE THAT ASSESSMENTS IN THE EARLI ER YEARS I.E . RELATING TO A S SE SSMENT Y EARS 1 988 - 89 , 1989 - 199 0 AN D 199 0-1991 HAS NOT BEEN DISTURBED BY THE A S SE SSING OF FICER AND THERE HAS BEEN NO CHANGE T H AT COULD JUSTIFY THE ASSESSING OFFICER A D OP T I NG A DIFFERENT VIEW IN THE ASSESSMENT YEARS 1 991 - 92 AND THEREAF T ER . AS STATED HE R E INBEFORE , I N CERT A IN CASES WHERE THE ISSUES INVO L VED HAVE ATTAINED FINALITY ON ACCOUNT OF T H E SUBJ E CT MATTER OF DISPUTE HAVING BEEN FINALLY ADJUDICATED, THE QUESTION OF RE OPENING AND RE VIS ITI N G THE SAME ISSUE AGAIN IN SUBSEQUENT YEARS WOULD NO T ARISE . THIS IS BASED ON PRI NC I PL E THAT THERE SHOULD BE FINALITY IN ALL LEGAL PROCEE DINGS. THE SUPREME COURT IN CAS E OF P ARASHURAM POTTERY WORKS CO. LTD V. ITO [19 77 7 106 ITR 1 HAD HELD AS UNDER : - ... . TH A T THE P O LI CY OF LAW IS THAT THERE MUST B E A POINT OF FINAL IT Y I N ALL LEGAL PROCEED I NGS, S TALE IS SUE S S H OULD NOT BE REACT I VATED BEYOND A P ARTI C ULAR STAGE AN D THA T LAP SE OF . E M UST IND UCE REP O SE IN AND SET AT REST JUDICI AL AND QUASI - JUDICIAL CONTROVERSIES AS IT T IN OTH E R SPHERES OF HUMAN ACTIVITY . ... 11 7.5. I N TH E FA CTS OF THE PRESENT CASE, WHERE ALTHOUGH THE ASSESSI NG OFFICER HAS ALLOWED THE E S SEE DEDUCTION UNDER SECTION . 80-1 OF THE ACT IN THE PRECEDING Y EARS , ONE MAY STILL E CERTAIN RESERVATION S AS TO WH E THER T H E ISSUE OF ELIGIBILI TY O F U NIT NOS. 2 AND 3 FULFILLING THE CONDITIONS HAS BEEN FINALLY SETTLED, SINCE THE QUES TION HAS NOT BEEN A SUBJECT MATTER OF ANY APPELLATE PROCEEDINGS IN THE YEARS PRECEDING THE AS SESSMENT YEAR 1991-92 MATTER OF ANY APPELLATE PROCEEDINGS IN THE YEARS PRECEDING THE AS SESSMENT YEAR 1991-92. HOWEVER, THERE IS YET ANOTHER ASPECT WHICH NEEDS TO BE CONSIDERED. BY VIRTUE OF SECTION 80I(5) OF THE ACT, DEDUCTION U/S.80I OF THE ACT IS AVAILABLE TO AN ASS ESSEE IN RESPECT OF THE ASSESSMENT YEAR (REFERRED TO AS THE INITIAL ASSESSMENT YEAR) RELEVA NT TO THE PREVIOUS YEAR IN WHICH THE INDUSTRIAL UNDERTAKING BEGINS TO MANUFACTURE OR PRODUCE ARTICL ES OR THINGS, OR TO OPERATE ITS COLD STORAGE PLANT OR PLANTS OR THE SHIP IS FIRST BROUGHT INTO U SE OR THE BUSINESS OF THE HOTEL STARTS FUNCTIONING OR THE COMPANY COMMENCES WORK BY WAY OF REPAIRS TO OCEAN GOING VESSELS OR OTHER POWERED CRAFT. SUCH DEDUCTION IS ALSO AVAILABLE FOR THE SEVEN ASSESSMENT YEARS IMMEDIATELY SUCCEEDING THE INITIAL ASSESSMENT YEAR. SURELY IN C ASES WHERE AN ASSESSEE IS HELD TO BE ELIGIBLE FOR DEDUCTION IN THE INITIAL ASSESSMENT YEAR, THE S AME CANNOT BE DENIED IN THE SUBSEQUENT ASSESSMENT YEARS ON THE GROUND OF INELIGIBILITY SIN CE THE SET OF FACTS WHICH ENABLE AN ASSESSEE TO CLAIM TO BE ELIGIBLE FOR DEDUCTION UNDER SECTION 80I OF THE ACT OCCUR IN THE PREVIOUS YEAR ITA NO.5565/DEL/2014 6 RELEVANT TO THE INITIAL ASSESSMENT YEAR AND HAVE TO BE EXAMINED IN THE INITIAL ASSESSMENT YEAR. IN MATTER OF AN EARLIER ASSESSMENT YEAR AND DO NOT ARISE IN THE CURRENT ASSESSMENT YEAR, IT WOULD NOT BE POSSIBLE FOR AN ASSESSING OFFICER TO T AKE A DIFFERENT VIEW IN THE CURRENT ASSESSMENT YEAR WITHOUT ALTERING OR REOPENING THE A SSESSMENT PROCEEDINGS IN WHICH THE ELIGIBILITY TO CLAIM THE DEDUCTION HAS BEEN ESTABLI SHED. 76. IN CASES WHERE DEDUCTION IS GRANTED UNDER SECTI ON 80I OF THE ACT, THE APPLICABILITY OF THE SECTION IS DETERMINED IN THE YEAR IN WHICH THE NEW INDUSTRIAL UNDERTAKING IS ESTABLISHED. THE QUALIFICATION AS TO WHETHER ANY INDUSTRIAL UNDE RTAKING FULFILS THE CONDITION AS SPECIFIED UNDER SECTION 80I OF THE ACT HAS TO BE DETERMINED I N THE YEAR IN WHICH THE NEW INDUSTRIAL UNDERTAKING IS ESTABLISHED. ALTHOUGH THE DEDUCTION UNDER SECTION 80I OF THE ACT IS AVAILABLE FOR THE ASSESSMENT YEARS SUCCEEDING THE INITIAL ASSESSM ENT YEAR, THE CONDITIONS FOR AVAILING THE BENEFIT ARE INEXTRICABLY LINKED WITH THE PREVIOUS Y EAR RELEVANT TO THE ASSESSMENT YEAR IN WHICH THE NEW UNDERTAKING WAS FORMED. IN SUCH CIRCUMSTANC ES, IT WOULD NOT BE POSSIBLE FOR AN ASSESSING OFFICER TO REJECT THE CLAIM OF AN ASSESSE E FOR DEDUCTION UNDER SECTION 80I OF THE ACT ON THE GROUND THAT THE INDUSTRIAL UNDERTAKING IN RE SPECT OF WHICH DEDUCTION IS CLAIMED DID NOT FULFIL THE CONDITIONS AS SPECIFIED IN SECTION 80I(2 ) OF THE ACT, WITHOUT UNDERMINING THE BASIS ON WHICH THE DEDUCTION WAS GRANTED TO THE ASSESSEE IN THE INITIAL ASSESSMENT YEAR. THIS IN OUR VIEW WOULD NOT BE PERMISSIBLE UNLESS THE PAST ASSES SMENTS ARE ALSO DISTURBED. 7 7 . THE ASSESSING OFFICERS OVER A PER I OD OF THREE Y EARS BEING ASSESSMENT Y EARS 198 3 - 8 9 , 19 8 9-1990 AND 19 9 0-1991 HA V E CO NS IST E NTL Y ACCEPTED THE CLAIM OF THE ASSESSEE FOR DEDU CTION UNDE R 80-I OF TH E ACT AND I T W OUL D NO T BE OPEN FOR THE ASSESSING OFFICER TO DEN Y THE DEDU C TI O N U ND E R SEC TI O N 80 -I OF TH E A CT ON THE GROUND OF NON FULFILMENT OF T HE CONDITIONS UND E R 80 - 1 ( 2) OF THE AD W I THOUT DISTURBING THE ASSESSMENT FOR THE ASSESSMENT Y EARS RE L E V ANT TO TH E P RE V IOUS YE AR IN WHI CH THE UNIT NOS .2 AND 3 WERE ESTABLISHED . 78 . TH I S VI E W H A S ALSO BEEN AC C E PTED B Y A D IV ISION BENCH OF GUJARAT HIGH COURT I N T HE CA SE OF SAURA S HTRA CE M ENT & C H EMIC AL INDUSTR IE S ( SUPRA) . IN THAT CASE , THE GUJARAT HIGH C OURT HELD TH A T W H ER E RE L IEF OF A T A X H O LI DA Y H AD BE E N GRANTED TO AN AS S ESSEE IN AN IN IT I A L ASS E SS MEN T YEAR IN W HICH TH E CONDIT I O NS FOR GRANT OF TAX HOLIDAY HAD TO BE EXAMINED , DENIAL O F R E L IEF IN THE SUBSE QUENT YEA RS W O U LD NOT BE PERMISSIBLE WITHOUT DISTURB I NG THE ASSESSME NT IN T HE INITIA L A SSES SMENT Y EAR . THE RELEVANT EXTRACT FROM THE DECISION OF THE ' GUJARAT HIG H CO URT IN SAU RASHTRA CEMENT & CHEMICAL INDUSTRIES (SUPRA) IS QUOTED BELOW:- THE NEXT QUESTION TO WHICH THE TRIBUNAL ADDRESSED ITSELF, AND NO OUR OPINION RIGHTLY, WAS WHETHER THE TRIBUNAL WAS JUSTIFIED IN REFUSING TO C ONTINUE THE RELIEF OF TAX HOLIDAY GRANTED TO THE ASSESSEE-COMPANY FOR THE ASSESSMENT YEAR 1968-6 9, IN THE ASSESSMENT YEAR UNDER REFERENCE, THAT IS, 1969-70, WITHOUT DISTRIBUTING T HE RELIEF GRANTED FOR THE INITIAL YEAR. IT SHOULD BE STATED THAT THERE IS NO PROVISION IN THE SCHEME OF S.80J SIMILAR TO THE ONE WHICH WE FIND IN THE CASE OF DEVELOPMENT REBATE WHICH COULD BE WITHD RAWN IN SUBSEQUENT YEARS FOR BREACH OF CERTAIN CONDITIONS. NO DOUBT, THE RELIEF OF TAX HOL IDAY UNDER SECTION 80J CAN BE WITHHELD OR DISCONTINUED PROVIDED THE RELIEF GRANTED IN THE INI TIAL YEAR OF ASSESSMENT IS DISTURBED OR CHANGED ON VALID GROUNDS. BUT WITHOUT DISTURBING TH E RELIEF GRANTED IN THE INITIAL YEAR, THE ITO CANNOT EXAMINE THE QUESTION AGAIN AND DECIDE TO WIT HHOLD OR WITHDRAW THE RELIEF WHICH HAS BEEN ALREADY ONCE GRANTED 79. THE DIVISION BENCH OF THE BOMBAY HIGH COURT IN THE CASE OF PAUL BROTHERS (SUPRA) HAS ALSO ADOPTED THE VIEW EXPRESSED BY THE GUJARAT HIGH COURT IN THE CASE OF SAURASHTRA CEMENT & CHEMICAL INDUSTRIES (SUPRA) FOLLOWING THE AFORESAID DECISIONS, WE HOLD THAT IN FACTS OF THE PRESENT CASE UNIT NOS.2 & 3 ITA NO.5565/DEL/2014 7 CANNOT BE STATED TO HAVE BEEN FORMED BY SPLITTING U P OR IN RECONSTRUCTION OF EXISTING BUSINESS. ALSO HONBLE SUPREME COURT IN THE CASE OF SHASUN CH EMICALS AND DRUGS LTD. V. CIT 388 ITR 1 (SC) HAS HELD AS UNDER: IT IS ON THIS SATISFACTION THAT FOR THE ASSESSMENT YEAR 1996-97 ALSO THE EXPENSES WERE ALLOWED. ONCE, THIS POSITION IS ACCEPTED AND THE CL OCK HAD STARTED RUNNING IN FAVOUR OF THE ASSESSEE, IT HAD TO COMPLETE THE ENTIRE PERIOD OF 1 0 YEARS AND BENEFIT GRANTED IN FIRST TWO YEARS COULD NOT HAVE BEEN DENIED IN THE SUBSEQUENT YEARS AS THE BLOCK PERIOD WAS 10 YEARS STARTING FROM THE ASSESSMENT YEAR 1995-96 TO ASSESSMENT YEAR 2004-05. THE HIGH COURT, HOWEVER, DISALLOWED THE SAME FOLLOWING THE JUDGMENT OF THIS COURT IN THE CASE OF BROOK BOND INDIA LTD (SUPRA). IN THE SAID CASE IT WAS HELD THAT THE EXPE NDITURE INCURRED ON PUBLIC ISSUE FOR THE PURPOSE OF EXPANSION OF THE COMPANY IS A CAPITAL EX PENDITURE. HOWEVER, IN SPITE OF THE ARGUMENT RAISED TO THE EFFECT THAT THE AFORESAID JU DGMENT WAS RENDERED WHEN SECTION 35D WAS NOT ON THE STATUTE BOOK AND THIS PROVISION HAD ALTE RED THE LEGAL POSITION, THE HIGH COURT STILL CHOSE TO FOLLOW THE SAID JUDGMENT. IT IS HERE WHERE THE HIGH COURT WENT WRONG AS THE INSTANT CASE IS TO BE DECIDED KEEPING IN VIEW THE PROVISION S OF SECTION 35D OF THE ACT. IN ANY CASE, WARRANTS REPETITION THAT IN THE INSTANT CASE UNDER THE VERY SAME PROVISIONS' BENEFIT IS ALLOWED FOR THE FIRST TWO ASSESSMENT YEARS AND, THEREFORE, IT COULD NOT HAVE BEEN DENIED IN THE SUBSEQUENT BLOCK PERIOD. WE, THUS, ANSWER QUESTION NO. 1 IN FAVOUR OF THE ASSESSEE HOLDING THAT THE ASSESSEE WAS ENTITLED TO THE BENEFIT OF SE CTION 35D FOR THE ASSESSMENTS YEARS IN QUESTION. 7. LEARNED COUNSEL FOR THE ASSESSEE ALSO PLACED ON RECORD THE DECISION IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2010-11 OF ITAT DELHI SMC BENCH IN ITA NO.5566/DEL/2014 DATED 27 TH FEB, 2017 AND THE RELEVANT PARAGRAPH IS REPRODUCED HEREINBELOW: 9. SINCE THE FACTS OF THE PRESENT CASE ARE IDENTIC AL TO THE FACTS INVOLVED IN THE AFORESAID REFERRED TO CASE, SO RESPECTFULLY FOLLOWI NG THE ORDER DATED 13.02.2017 IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2007-0 8 AND 2008-09 IN ITA NOS. 5304 & 5305/DEL/2012, THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) IS SET ASIDE AND AO IS DIRECTED TO ALLOW THE CLAIM OF THE ASSESS EE FOR DEDUCTION U/S.80IB OF THE ACT. 8. THEREFORE, IN ALL THE CIRCUMSTANCES AND FACTS OF THE CASE AND DECISION OF HONBLE ITAT DELHI BENCH REPRODUCED HEREINABOVE, THE CLAIM OF THE ASSESSEE U/S.80IB IS ALLOWABLE AND THE ORDER OF THE LEARNED CIT(A) IS REVERSED ACCORDINGLY. 9. AS REGARDS THE ISSUE WITH REGARD TO THE FILING O F THE ORIGINAL RETURN AND ITA NO.5565/DEL/2014 8 THE REVISED RETURN. IT WAS POINTED OUT BY THE LEARN ED COUNSEL FOR THE ASSESSEE MR. GAUTAM JAIN, ADVOCATE THAT ORIGINAL RETURN WAS FILED ON 30 TH SEPTEMBER, 2009 AND THE ACKNOWLEDGEMENT IS PLACED AT PAPER BOO K PAGE 1 AND REVISED RETURN WAS FILED ON 30.12.2009 AVAILABLE AT PAPER B OOK PAGE 25. THE ISSUE RAISED BEFORE THE AO AND THE LEARNED CIT(A) IS THAT THE ORIGINAL RETURN CLAIMED TO HAVE BEEN FILED ON 30 TH SEPTEMBER, 2009, IN FACT IS NO RETURN WHERE ALL THE COLUMNS HAVE BEEN FILED IN AS ZERO AN D THAT IS SIMPLY AN ACKNOWLEDGEMENT DOWNLOADED FROM THE ITD SYSTEM, AND THEREFORE, FOR ALL PRACTICAL PURPOSE THE RETURN FILED ON 30 TH SEPTEMBER, 2009 IS THE ORIGINAL RETURN WHICH IS BELATED RETURN, THEREFORE, NO CLAIM U/S.80IB CAN BE ALLOWED. 10. IN THIS REGARD, I AM OF THE VIEW AS POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE, MR. GAUTAM JAIN, ADVOCATE THAT AT PAGE 2 OF AOS ORDER, THE AO HIMSELF ADMITS THAT THE RETURN FILED ON 30 TH SEPTEMBER, 2009 IS A REVISED RETURN. SECONDLY, NOWHERE AUTHORITY BELOW H AS RAISED A QUESTION THAT THE RETURN FILED ON 30.9.2009 IS INVALID RETURN AND THE RELIANCE HAS BEEN PLACED ON THE DECISION OF HONBLE ITAT COCHIN BENCH IN THE CASE OF R. KASI VISHWANATHAN AND BROTHERS VS. ACIT, AVAILABLE AT PA PER BOOK 101, WHERE IT HAS BEEN HELD THAT THE ASSESSEE FILED A REVISED RET URN IN ACCORDANCE WITH THE PROVISION OF SECTION 139(5) OF THE ACT. THE REVENUE AUTHORITIES WERE NOT JUSTIFIED IN REJECTING THE SAID RETURN WITHOUT FOLL OWING THE PROCEDURE PRESCRIBED U/S.139(9) BY MERELY TAKING A VIEW THAT A REVISED RETURN WAS AFTERTHOUGHT AND WAS FILED ONLY TO REDUCE ASSESSEE S TAX LIABILITY. IN THE PRESENT CASE ALSO NO AVERMENT WITH REGARD TO INVALI D RETURN HAS BEEN RAISED BY ANY OF THE AUTHORITIES BELOW AND IN SHORT THE PR OVISION OF SECTION 139(9) HAVE NOT BEEN INVOKED AND IN SUCH CIRCUMSTANCES THE PLEADINGS TAKEN BY ITA NO.5565/DEL/2014 9 LEARNED DR RELYING UPON THE ORDERS OF BOTH THE AUTH ORITIES BELOW CANNOT BE UPHELD AND THE ORDERS OF BOTH THE AUTHORITIES ARE R EVERSED ACCORDINGLY. THUS, ALL THE GROUNDS OF THE ASSESSEE IN VIEW OF MY DISCU SSION HEREINABOVE ARE ALLOWED. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO.5565/DEL/2014 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY 21 ST APRIL, 2017 SD/- (B.P. JAIN) ACCOUNTANT MEMBER DATED: 21/04/2017 PRABHAT KUMAR KESARWANI, SR.P.S. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT AS SISTANT REGISTRAR